The Measure of Injury: Race, Gender, and Tort Law

By Black, Derek W. | Journal of Psychiatry & Law, Fall 2011 | Go to article overview

The Measure of Injury: Race, Gender, and Tort Law


Black, Derek W., Journal of Psychiatry & Law


The Measure of Injury: Race, Gender, and Tort Law, by Martha Chamallas and Jennifer B. Wriggins (New York, NY: New York University Press, 2010), 228 pp., $40.00.

The Measure of Injury: Race, Gender, and Tort Law by Martha Chamallas and Jennifer Wriggins, challenges the traditional view of tort law as neutral and objective, and aims to demonstrate instead that tort law is littered with, if not substantially shaped by, gender and racial bias. When the first page asserts that "from the types of injuries recognized, to judgments about causation, to the valuation of injuries," tort law "has been affected by the social identity of the parties and cultural views on gender and race," traditionalists and moderates cannot help but read the rest of the book with more than an insubstantial level of skepticism. The basic notion that tort law is less accepting of claims by women and minorities simply would not strike many readers as immediately plausible because negligence and intentional tort claims, on their face, know no race or gender. Most students of tort law can search their knowledge of the subject and not call to mind any more than maybe a few examples that fit Chamallas and Wriggins' claim. While not perfect, tort law's open ended concepts of negligence, intent, fault, and harm would seem immediately available to all on equal terms. Thus, against this backdrop, the book's aim is no small task, nor its success a foregone conclusion, which is what makes the book so insightful and compelling in the end.

Through a methodically critical examination of the premises that underlie tort law, the authors build an unassailable mountain of examples and principles that reveal the presence of race and gender influences so prevalent that one ultimately wonders how we managed to miss them. And that we have missed these influences for so long offers an indictment not only of tort law itself, but our capitulation to it. The authors do not directly address why this problem has largely gone unnoticed, but the answer seems to be that tort law on its face is incredibly neutral and objective, and those aspects that are not can only be found at the subtle core of torts. The subtle core of torts involves fact finders and courts determining what is tortious and nontortious conduct, based far too often on subconscious social norms for torts to stand as a triumph over racial and gender inequity where other areas of the law have failed. Yet, because we have infrequently viewed torts in this manner, it is only the excavation this book performs that manages to bring the racial and gender inequity in torts to our attention. In this respect, the book carries the heavy theoretical and doctrinal load for future reforms, but leaves no shortage of serious case by case work in the meantime for lawyers, psychologists, and their colleagues in the other social sciences. In particular, the professionals supporting tort claims by women and minorities must assist in reshaping the theoretical and practical frames with which courts and jurors view individual cases. This means assisting courts and jurors in deconstructing their own false sense of neutrality and accounting for biases that should play no role in their factual and legal determinations.

The book proceeds in six chapters. The first chapter begins with a discussion of the theoretical frameworks for evaluating gender and race influences in tort. The second chapter canvases torts historically, pointing to pre-civil rights era examples where race and gender stereotypes were accepted factors of analysis that limited the claims recognized on behalf of women and minorities. For instance, the stereotypical notion of feminine fragility was used to excuse harm caused by what was otherwise faulty conduct by others (pp. 41-42), just as the lowered social status of African Americans was used to deflate the harm they suffered at the hands of whites and inflate the harm that they caused to whites (pp. 51-54). …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Measure of Injury: Race, Gender, and Tort Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.